A lot has been said and written about the recent issue pertaining to nominations and appointments of the judges of the Supreme Court. As per one view, the nominations ought to be on the basis of seniority until a better criterion is formed in the interest of dignity of the institution as well as the judges. On the other hand, the inferiority of the superiority criteria has been highlighted on grounds of the need for ‘competence’, ‘vision’ and ‘spirit’ at the SC level, the different role and job that a SC judge is expected to play vis a vis a high court judge, the redundancy of the Judicial Commission of Pakistan in the face of a conveyor belt method of appointment and other factors.
This debate is certainly important, and one that must be had because this is not the first time that the process of formalising nominations for superior judiciary has become contentious. Even prior to the 18th amendment, this question has been raised before the judges in several cases. It, however, does not appear to be comfortably settled amongst the fraternity given the level of engagement and interest this issue generates each time superior court nominations and appointments are announced.
The problems appear to stem from three essential aspects.
- That there is little understanding of the nominations and appointments process and its nuances with a misplaced focus on ‘seniority’ as being a blanket criterion for such nominations and appointments.
- That separate issues are being conflated and confused within the ‘legality vs the quality’ of the process binary, in that it is one thing to highlight the need for reform in a given process and quite another to suggest that a said nomination is not in line with the process, when in fact it is.
- That there is a misplaced nexus between seniority, honour, respect and nominations, making it an issue of pitting one judge against the other, when it should not be the case.
In other words, the process may be far from satisfactory and may well be in need of reform but whether or not a current nomination is in line with the existing process.
Therefore, in accordance with law, it is a completely separate question from an opinion on the fact that it ought to be reformed. One cannot challenge an existing nomination as being in violation of the ‘process’ based on an opinion of what the process ought to be.
One may, however, call for the reform of the process and suggest ways to improve and make it more satisfactory, credible and acceptable. It is, therefore, very important to understand first what the process actually is, what its nuances are and then comment on whether or not it is being followed and how, if at all, should it be reformed.
Under the existing law, the process of nominations and appointments of the judges of superior courts is laid down in Article 175 A of the Constitution of Pakistan 1973 read with Rule 3 of the Judicial Commission of Pakistan Rules 2010 (hereinafter referred to as “2010 rules”).
Rule 3 of the 2010 rules states that for each anticipated or actual vacancy of a judge in the SC or the Chief Justice of Federal Shariat Court or the Chief Justice of High Courts, the Chief Justice of Pakistan is to initiate nominations in the Judicial Commission for appointment against a vacancy in the senior judiciary.
Article 175-A of the Constitution envisages the establishment of a ‘Judicial Commission’ (JC), which would comprise 5 members for the nomination of judges of the Supreme Court and 9 members for the appointments of judges in the High Courts and a ‘Parliamentary Committee’ (PC) comprising four members from the Senate and four from National Assembly.
Against each vacancy, a nomination is forwarded by the JC to the PC for consideration, thereafter the PC forwards the names to the Prime Minister who in turn forwards them to the President for appointment.
The eligibility requirements are laid down for judges of the SC and HC separately in Articles 177 and 193 of the Constitution respectively as follows:
Article 177 of the Constitution deals with the eligibility of judges to be appointed at the Supreme Court and states that they must;
- Be Pakistani Citizens,
- Have been a judge of the High Court for not less than 5 years at least, or
- Been enrolled as an advocate of the High Courts for not less than 15 years.
Article 193 of the Constitution which states that they must;
- Be Pakistani Citizens of not less than 45 years of age,
- Been enrolled as an advocate of the High Court for not less than 10 years, or
- Has been a member of civil service for not less than 10 years and has for a period of not less than 3 years served as the District Judge in Pakistan, or
- Held a judicial office for not less than 10 years.
These provisions are supplemented with judicial decisions. Namely, the ones that established the supremacy of the judicial commission as regards the nomination and appointments and rendered the role of the Parliamentary Committee to merely that of rubber stamping for sake of judicial independence from executive influence, see for instance, Nadeem Ahmad Advocate v. Federation of Pakistan (PLD 1165 SC 2010), Munir Hussain Bhatti v Federation of Pakistan (PLD 2011 SC 407) and Presidential Reference No. 01 of 2012 (PLD 2013 SC 279).
Amongst the most celebrated cases and one from where the seniority argument appears to stem from is however, the SC judgement in the Al Jehad case (PLD 1996 SC 324), also known more popularly as the ‘Judges Case’, which held amongst other things that the most senior judge of a high court is entitled to be appointed as chief justice except where concrete and valid reasons are recorded by the president/executive.
However, it must be noted that this speaks of seniority in relation to the appointment of the Chief Justice of a respective court and does not appear to apply as a principle for nominations and appointments of all other judges in superior courts. The decision of the Supreme Court in Supreme Court Bar Association v Federation of Pakistan (PLD 2002 939 SC) in paras 23-27 clearly established that the absence of the words, ‘the most senior’ in Article 177 for appointment of Judges of the Supreme Court would show that seniority of a Judge in the High Court is not an essential condition for their appointment as a Judge of the Supreme Court. They went on further to assert that, “We are clear to our mind that neither the principle of seniority is applicable as a mandatory rule for appointment of Judges in the Supreme Court nor the said rule has attained the status of a convention”. In their view, the consultative process envisaged in the constitution for nomination and appointments of superior judges will become redundant and superfluous if the rule of seniority is held applicable to the appointment of the Judges of the Supreme Court because in that eventuality the process would become automatic and mechanical.
Against this backdrop, the current assertions banking on seniority must be reevaluated and a clear distinction should be drawn between understanding whether or not a given nomination is in accordance with law and process and whether or not the process itself is in need of reform. This is important because conflating the two issues could lead to making current nominations unnecessarily contentious on incorrect grounds. These are two separate questions which must be answered separately and in light of the legal provisions discussed above the answer would be as follows:
To the question, whether or not existing nominations for appointments as SC judges’ sans seniority in accordance with law? The answer is yes, they are. To the very distinct question of whether the existing process is flawed and in need of reform or not, the answer is also yes.
The need to keep these two questions distinct is important so as not to render individual nominations contentious because if they are as per current law and process then they should not be made controversial per se. If the grievance is against the process in itself, the brunt of that should not fall on the nominees whose names have been moved in accordance with current, existing and available process regardless of what one thinks of that process because It is, nevertheless, THE process currently in place.
Given this, it seems that it may not be correct to suggest that, by not nominating the senior most judge for appointment at SC, the process is being flouted. Such perceptions are misplaced and appear to stem from a lack of understanding or acknowledgement of the difference and nuances in the way a chief justice is to be appointed vis a vis any other judge of the SC is to be appointed as shown in PLD 2002 939 SC.
Now that we have discussed that current nominations have been in accordance with existing law and process even though the process may itself be inadequate, we turn our attention to the second and the more important question of the reform that is required in the current process which appears to be arbitrary and devoid of an objective criteria in line with notions of transparency, fairness and clarity. The questions that are rightly being asked, revolve around what the established principle should be, if not seniority, in such appointments and how can they be codified and applied.
To answer this, we will need to look at the process of judicial nominations and appointments more historically as well as in light of the emerging global trends to determine what our own way forward should be. We look at each in turn.
The judicial system in Pakistan traces its roots in the medieval times categorized into four eras by Dr. Faqir Hussain in his report on the judicial system of Pakistan. In that, he states that our judicial system has been a product of an evolutionary process from the Hindu origins to the Mughal empire and then the British colonization to the post-independence and present-day Pakistan era. In this way, it is not, in its entirety, a foreign system and is rooted heavily in culture and customs of the land that pre-date the British rule and their import of the British legal values that continue to be the basis of our modern-day justice system.
His research shows that in the Hindu period, judges were appointed on the basis of their ‘qualifications’ and ‘scholarship’ even though the choice was mostly restricted to upper caste i.e. Brahmins. This could possibly be because within the caste system, the Brahmins were privileged to be among the most learned of men but even so, the stress on scholarship along with qualifications indicates that a certain kind of acumen was pursued for appointments of this nature.
During the early Muslim period, the King was the head of judicial administration and he made all appointments to judicial posts. Once again, persons of ‘recognized scholarship’, ‘known competence’ and ‘high integrity’ were appointed to such posts.
The Mughal emperor continued the appointment of persons of ‘high scholarship’ and ‘good reputation’, while instructions were given to the judges to be ‘neutral’ and ‘impartial’. The Mughals were also more open to accountability and complaints against judges were taken seriously. Corrupt officials were removed. The scales of justice were, therefore, very high.
The British laid more stress on the professional qualifications and standing such as the number of years of enrolment as a barrister, as subordinate judiciary or a certain number of years of experience as a civil servant, etc. However, it must be noted that a 1/3 quota was prescribed to fill in positions from amongst these different professional backgrounds so that the Bench had a percentage of representation from among barristers, civil servants as well as members of subordinate judiciary with at least 5 years of standing. The British therefore, reduced the ‘criteria’ to the professional qualifications, age, standing and citizenship.
After independence, even though the process of judicial nominations went through major reform in light of securing judicial independence but the reference to normative principles like, high standards, integrity, scholarship, competence, good reputation etc was gradually eroded from being embedded in the process or eligibility for judicial nominations as they were in pre-colonial eras. There also no longer appears to be any prevalent quota requirement for appointment in senior judiciary from people from different professional backgrounds in law as it was in some way under the British era.
One way to understand this could be that under monarchy the judges were dispensing justice in the name of the king and so they were not ‘independent’ in the sense of their appointment and allegiance to the king. With the advent of democracy and calls for judicial independence and separation of powers, the debate on personal attributes, seems to have been rested for attributes like integrity, impartiality and good reputation, all of which do not seem to be capable of precise definitions making them difficult to be ‘justiciable’ in event of a dispute. What after all does good reputation entail and by whose standards? These are hard questions and so it is no surprise that the present-day Constitution has adopted the more quantifiable factors as criteria for eligibility of judges for appointments in superior courts under Article 177 and 193.
As Baig explains,
‘The judiciary’s anxiety while including other institutions in the appointment process is understandable. Our nation’s chequered history has witnessed a number of attempts to trample upon the judiciary’s independence — fostering a culture where calls for greater judicial accountability are viewed with scepticism and suspicion; however, such concerns must not become impediments in the way of greater transparency. We must not become prisoners of our past and inward-looking in our approach. Appointments to the superior judiciary should reflect the principles that form the bedrock of our democratic dispensation.’
It could also, however, be attributable as a colonial hangover that has persisted since the focus on professional qualifications and standing was their import into the appointments process to begin with. In any event, it must be highlighted that in a democracy and in fact, more so in democracies, institutions should be based on principles of natural justice, inter-sectional representation and the rule of law which stands against both, the arbitrariness of decision making as well as the concentration of power in a single institution. These fundamental principles, all of which are in line with fundamental rights and the notion of fair representation, appear to be undermined if the grounds on which the lists of nominations for appointments to superior judiciary are prepared without recourse to any objective principles such as transparency, diversity and affirmative action that could be taken under Article 25 of the Constitution.
In Pakistan, perhaps ‘independence’ has been interpreted to mean ‘unfettered freedom’ as opposed to ‘separation from interference’ of other state organs. Separation of powers does not mean that rules of natural justice and general principles of law such as transparency and objectivity do not apply. Nor does it mean that arbitrary decisions can be made, especially for people who are going to be the arbiters of disputes that affect the general public. To not have any such objective and transparent criteria for nomination, appointments and selection of judiciary to date, is to go against not just our own traditional and historic basis of judicial appointments as seen above, but also against the rule of law.
The Attorney General of Pakistan in the March 1998 Conference declared that,
‘In order to effectively enforce the rule of law in any State, its judiciary has to be an emblem of neutrality, stability and continuity. To me, this institution is bound to suffer in its image if it exceeds its sanctioned role and undermines the conventions uploading its institutional values and one has to consider that, on the pretext of activism, it may not become a tool of power play.’
Given that our Constitution entrusts the courts with an obligation to preserve, protect and respect the Constitution, there should be no reason why the nominations process should not be reformed to reflect a more transparent process rooted in principles of equality of access, fundamental rights and inter-sectional representation.
Globally, the consensus that appears to be emerging is that, the judiciary – a body that is responsible to adjudicate on matters affecting the lives, rights, properties, freedoms and duties of people – would itself embody those rights and freedoms, in the way that it operates, so that a sense of public confidence in the justice system is promoted.
As early on as 1985, the United Nations General Assembly (UNGA) adopted the Basic Principles on the Independence of Judiciary, which recognize the importance of selecting people for judicial office on basis of attributes such as ‘integrity’ coupled with ‘appropriate training’ and ‘qualifications’ in law whilst also stating that there shall be no discrimination in such selections on the basis of race, color, sex, religion etc. among others. While judicial appointment mechanisms shall safeguard selection against any improper motives, it is highly imperative to understand that a requirement of a candidate to be a national of the country concerned is not to be considered a discriminatory criteria for appointment. Judges in Pakistan have a guaranteed tenure until they reach their age of retirement. Any appointment or elevation, according to the Basic Principles, shall be based on objective factors, in particular ability, integrity, and experience.
As stated by Judge Sanji Monageng of the International Criminal Court (ICC), ‘A successful judiciary is one whose members are appointed following both the candidate’s legal qualifications as well as integrity.’
Furthermore, some constitutions specify an express commitment to gender and racial balance in the judiciary. The South African Constitution, for example, states that,
‘The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.’
What this indicates is that a judicial council can be constitutionally required to take a proactive role in the achievement of gender balance in judicial office.
According to the Commonwealth Latimer House Principles adopted in 2003, which provide guidance on the separation of powers, judges should be appointed ‘on the basis of clearly defined criteria and by a publicly declared process’ so as to convey a fundamental commitment to transparency. At a minimum, the public must be informed of the characteristics that qualify persons for judicial office and the procedures that are followed when an individual applies or is considered for appointment.
The Principles further make clear that the criteria for judicial office should be informed by the fundamental objectives of equality of opportunity, appointment on merit and the need to address gender inequity and other historic factors of discrimination in the context of a particular society.
The Latimer Principles suggest inter alia that, judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process and in particular that, the process should ensure,
(a) Equality of opportunity for all who are eligible for judicial office;
(b) Appointment on merit; and
(c) That appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination.
In view of similar objectives, the UK Constitutional Reform Act of 2005 dramatically changed the role of the Lord Chancellor and introduced an independent Judicial Appointments Commission (“JAC”), responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Justice.
The Judicial Appointments Commission ensures that merit remains the sole criterion for appointment and the appointments system is modern, open and transparent. It selects candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates. The JAC was set up in order to maintain and strengthen judicial independence by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable. The law allows the commission to prefer one person over the other for the purpose of increasing diversity where the two are of equal merit. The commission is further mandated to have regard to the need to encourage diversity in the range of persons available for selection for appointments.
The 2005 Act further introduced a Judicial Appointments and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of judicial conduct complaints within the scope of the Constitutional Reform Act.
In 2013, Lady Justice Hale set up the Judicial Diversity Committee that works alongside Judicial Appointments Commission in the UK to facilitate and pursue initiatives for a more diverse pool of candidates looking to commence their judicial career. Since 2015, the committee has run increasingly popular application workshops aimed at under-represented groups. These form part of a positive action programme which is intended to help candidates make stronger applications; but once they have completed the programme, they are expected to compete on merit with the other applicants. To attract more solicitors and legal academics to the senior judiciary, they have extended the eligibility of the High Court programme to those without litigation experience. Between 2013 and 2017, the proportion of female judges in the tribunals increased from 43% to 45%, and the percentage of Black Asian & Minority Ethnic (BAME) judges increased from 9% to 10%.
This shows that even our colonial rulers whose legacy we carry forward as a hangover, have themselves moved away from strictly applying professional qualifications, age, standing and citizenship or seniority as the basis for judicial appointments towards a more merit based, open and inclusive system of appointments.
For a country like Pakistan where structural inequalities and social barriers have created deep rooted imbalances in terms of access to opportunities among men and women and among marginalized and privileged classes, what is required is not only a passive injunction to avoid discrimination but rather, more proactive affirmative actions that address the glass ceilings that enable the discrepancies to persist. In Pakistan also, the law on paper as it currently exists for judicial appointments also makes no distinctions as to race, gender, religion etc but at the same time, it must be asked whether that is enough to discharge one’s responsibility towards correcting the inequalities that exist in practice?
The fundamental rights chapter in the Constitution of Pakistan, 1973 under Article 25, not only calls for equality of all citizens before the law but empowers the state to make any special provision for protection of women and children. This is not to suggest that women and members of minority communities are less able and therefore, need to be included but only to highlight that the process presently being pursued is likely to go against the spirit of equality, inclusion, diversity and equity in the absence of clear guidelines and transparency.
With more transparency in the nominations and appointments and more clarity as to the criteria and attributes which are to be considered for proposing judicial nominations, women and other underrepresented groups are likely to be aware of their standing as potential candidates for being nominated and elevated to become a judge on the basis of their competency. Hence, affirmative action as referred to above in Article 25 of the Constitution of Pakistan may be used as a start to a better outreach effort for judicial appointments.
These reforms, however, may not be possible till such time that honour, respect and morale of a senior judge continues to be associated with entitlement for elevation or nomination. This nexus is misplaced in light of evolving global standards and principles favouring a more merit based and open system of judicial appointments. The nomination of one judge should not be pitched as being at the cost of another. Each nomination should be perceived on the basis of the strength of each individual candidate as opposed to being ‘over’ or in relation to any other judge. This is because, the law even as it currently stands does envisage scope for lawyers with over fifteen years of practice to be considered for nomination directly as a judge of the SC without having ever being appointed as a judge at any level, so it really is not a question of nominating one over the other but more a question of taking each individual nomination as a separate and distinct case as otherwise, why would the law put a lawyer who has never been a judge, let alone that of HC to be in the similar position of having the possibility of being nominated as a judge of the SC?
If a lawyer with over fifteen years of experience is ever nominated as a judge of the SC in accordance with law, would that also be considered a matter of disrespect for a senior judge in the HC? If so, by that standard, a lawyer might never be able to be nominated even though Article 177 (2) (b) of the Constitution clearly allows for such a possibility.
There is no one right answer to the question of what the criteria ought to be. To begin with, the idea of accepting merit as a basis for appointments in superior court should first be embraced and a move like UK to shift the focus from seniority to merit, diversity and other progressive values be accepted for any conversation on what that merit-based criteria ought to entail. In other words, it is important to first be clear about the underlying objective and approach towards judicial appointments, particularly for judges of the SC. Once that is settled, it makes sense to talk about defining that ‘merit’.
In my view, even if, as is sometimes asserted, there cannot be any hard and quantifiable definition of merit per se, there is no reason why a provision, highlighting a non-exhaustive list of factors that the Chief Justice and Members of the JCP take into consideration for initiating nominations, cannot be laid down offering some valuable insight for diminishing the information deficit that currently prevails and reducing the arbitrariness of the discretion of nomination in the hands of the Chief Justice.
Both hard measures as well as soft measures should be considered for the underlying objective of achieving credibility and transparency in the system of judicial nominations. For instance, a constitutional amendment in Article 175-A could be made to reflect the emerging trends towards merit, values, past record, known competence in Fiqh or other field, compliance with financial regulations or other standards of professional ethics and codes of conduct as already exist and are prescribed for lawyers as well as judges, legal acumen and recognised legal scholarship and including a provision on ensuring diversity and gender equality at the bench along with other attributes and/or factors as may be agreed upon or on which there is a consensus among the stakeholders, particularly from the fraternity.
Such consensus may be achieved with a consultative and participative dialogue initiated by upper echelons of judicial corridors to draft the ‘Pakistan Principles of Judicial Nominations and Appointments’. Such a draft may help spell out the principles, factors, grounds, basis and/or policy considerations on the basis on which nominations shall be moved, thereby bringing much needed transparency in the judicial nominations and appointments. This may also serve as a guide and may be used in judicial or other academies in training of judges or other stakeholders to prepare them for the role ahead and also for people to know what all is likely to be taken into consideration in the making of a judicial nomination by concerned quarters.
A revised National Judicial Policy may be another soft tool where the factors that Chief Justice and other members of JCP take into consideration for initiating a nomination may be laid down to offer some insight even if a hardcore criterion cannot be spelled out. This would enable in giving some direction and idea of what it takes to be nominated.
Along with that, there is also a need to rethink the composition of the JCP and the concentration of power to initiate nominations in the hands of the Chief Justice under Rule 3 of 2010 rules. This needs to be more open and inclusive. One way of achieving it would be to draw inspiration from Ontario’s Judicial Appointments Advisory Committee, where one of the first responsibilities that the committee delved into was writing a letter to the 1200 female lawyers in the province, asking them to consider applying to become a judge. This was a course of action which resulted in Ontario’s 40 percent appointed judges being women from the years 1990 to 1992. If the Judicial Commission in Pakistan takes on a similar course, to invite applications against vacancies, particularly from marginalized persons, it may enhance diversity. Provided that JCP commits to diversity and actively pursues it. Which if it won’t, can serve as a measure to gauge where they stand on the gender and diversity index.
Overall, there is a strong need to distance the judicial system from the colonial hangover of concepts like seniority and along with that, a strong need to also dispel the notions of dishonour or disrespect perceived to be associated with oversight in the event that a junior judge or a lawyer for that matter is nominated instead of a senior judge. Unless this misplaced fixation with seniority and its nexus with respect and honour is not re-evaluated and re-examined, it would be very difficult to bring any reforms in practice that aim to bring a more merit based, open, transparent and inclusive system of judicial appointments.
The author would like to acknowledge the contribution of Adv. Sara Raza for assisting with the research and input in this article.